Court rejects NSW coal mine appeal on community impact and climate change grounds

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7

This February 2019 appeal in the NSW Land and Environment Court before Preston CJ has re-established the requirement for the consent authority to consider Scope 3 Greenhouse Gas (GHG) Emissions in determining an application for approval of a coal mine in NSW.

Local community group, Gloucester Groundswell, argued against approval of the mine and was represented by NSW Environmental Defenders Office, which described the judgment as “…a seminal moment in the development of climate litigation in Australia and well and truly puts us on the map in terms of international climate change litigation.”

This judgment will be relied upon in assessing and opposing future applications for coal mining (and potentially other) approvals and associated litigation in NSW and potentially elsewhere.

The application was refused because its benefits were outweighed by its “disbenefits” of visual, air quality and social impacts on existing uses in the vicinity of the mine, as well as the impacts of the Scope 1, 2 and 3 GHG emissions (direct and indirect) by the proposed mine.

Preston CJ’s extensive analysis of the impacts of GHG from the operation of coal mines and the combustion of coal on climate change, commitments of NSW and Australian governments to the reduction of carbon emissions and how these matters relate to the relevant functions of the consent authority will be of particular interest to coal miners and their opponents.

So what’s changed since 2007 when Pain J in Gray v Minister for Planning (2006) 152 LGERA 258 (Gray) recognised that the contribution to CO2 in the atmosphere (and its causation of global warming) of one individual mine must be taken into consideration when determining an application for approval, despite the fact that it is just one of many sources of CO2 around the world? Preston CJ said at para 699 it is now “… a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided.”

This application was refused because its assessed detriments (of which GHG emissions were just one) were not exceeded by its assessed benefits. This decision does not mean that all future applications for consent for fossil fuel developments in NSW must be refused because of the GHG emissions. The impacts of scope 1, 2 and 3 GHG emissions on global climate change is one of the detrimental environmental effects to taken into account in determining whether the economic and social benefits outweigh the environmental costs. This judgment puts greater prominence in the determination of GHG emitting proposed developments, particularly in the times in which we find ourselves.

His Honour’s judgment provides insight into the relevance of GHG emissions, describing the determination function as being “…to evaluate the merits of the particular fossil fuel development … Should this fossil fuel development be approved or refused? Answering this question involves consideration of the GHG emissions of the development and their likely contribution to climate change and its consequences, as well as the other impacts of the development. The consideration can be in absolute terms or relative terms...”

Of concern for coal miners, he goes on to say that “In absolute terms, a particular fossil fuel development may itself be a sufficiently large source of GHG emissions that refusal of the development could be seen to make a meaningful contribution to remaining within the carbon budget and achieving the long term temperature goal. In short, refusing larger fossil fuel developments prevents greater increases in GHG emissions than refusing smaller fossil fuel developments.”

That is not the situation in this case. His Honour concluded at para 222 that “The visual impacts of the Project, both by themselves and by reason of the consequential adverse effects on existing, approved and likely future uses of land in the vicinity, and the social impacts that the visual impacts will likely cause, justify refusal of consent for the Project.” It is clear, however, that His Honour considers that in appropriate circumstances it is open to a consent authority to refuse approval solely or largely on the basis of the GHG emissions. It is not ruled out and the larger the mine, the greater the risk of that occurring.

Click here to read more about the background of this case, the legal context, important passages for coal mine proponents, the impacts of the Mine on climate change and the reasons for rejecting the appeal.